People v. Valdez, No. 05CA2624.

• Docket Nº: No. 05CA2626.
• Citation: 183 P.3d 720
• Case Date: April 03, 2008
• Court: Court of Appeals of Colorado

183 P.3d 720 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Elias Armando VALDEZ, Defendant-Appellant. No. 05CA2624. No. 05CA2626. Colorado Court of Appeals, Div. III. April 3, 2008.

[183 P.3d 721]

John W. Suthers, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge HAWTHORNE.

In this consolidated appeal, defendant, Elias Armando Valdez, appeals the judgments of conviction entered upon jury verdicts finding him guilty of attempted first degree murder, first degree assault, menacing, violation of bond conditions, and two counts of violation

183 P.3d 722

of a protective order. He also appeals the revocation of a deferred judgment and sentence he received in an unrelated case because the revocation was based on the judgments of conviction he received in this case. We affirm.

I. Background

In 2003, defendant was charged with distribution of cocaine to an undercover officer and possession of marijuana. He received a four-year deferred sentence with a four-year probation period.

A year later, defendant's wife asked him to move out of their home because of his drug use and legal troubles. She told him the relationship was over. On November 2, 2004, he moved out.

Later that month, defendant was charged with domestic violence against his estranged wife after an incident where he went to another man's house looking for her. She obtained a restraining order, which barred him from contact with her or the residence where she was living, which was also his former home.

Defendant later contacted her by phone. She told him that he needed to go through the court and that she had met someone else. Defendant later learned it was one of his former schoolmates.

Two months later, defendant called his estranged wife at her work to ask who had been driving her car. Later that night, he drove to her house to see if his former schoolmate was there. He saw the boyfriend's car there, then parked a block away, broke into the basement of the house, and hid. During this time, his estranged wife and her boyfriend engaged in sexual relations, and then went to sleep in her bed.

He remained in the basement until 6 or 7 a.m., when he went into the yard, picked up a metal pipe, and then re-entered the house, where he also picked up a knife. He walked upstairs to the bedroom, hit the boyfriend in the face with the metal pipe, and stabbed him in the chest. Defendant then woke up his estranged wife and told her that her boyfriend was dead and that he was going to get rid of her, too. He said if he could not have her, nobody was going to have her. The boyfriend survived, and defendant was arrested.

At trial, the court refused defendant's request to present expert testimony on the subject of heat of passion. However, the court instructed the jury on the lesser included offense of attempted second degree murder and the heat of passion mitigator with respect to both attempted second degree murder and first degree assault. The jury returned verdicts finding defendant guilty as charged.

While defendant was in custody, the probation department petitioned to revoke the four-year deferred sentence and probation defendant had received for possessing and distributing marijuana. The department cited to the charges stemming from the stabbing and beating of his estranged wife's boyfriend, as well as to a charge of third degree assault stemming from another incident. After a hearing, the court revoked defendant's deferred judgment and sentence and sentenced him to the Department of Corrections for thirty years on the attempted first degree murder conviction, six years on the menacing count, two one-year terms on the violation of the restraining order counts, and six months on the violation of bond conditions count.

Defendant appeals the judgments of conviction that resulted from the stabbing, as well as the revocation of his deferred judgment and sentence on the possession and distribution charges.

II. Expert Heat of Passion Testimony

Defendant first contends that the trial court erred by excluding his expert's testimony on the subject of heat of passion. We disagree.

Trial courts are vested with broad discretion to determine the admissibility of expert testimony, and the exercise of that discretion will not be overturned unless manifestly erroneous. People v. Wallin, 167 P.3d 183, 187 (Colo.App.2007). An abuse of discretion does not occur unless the trial court's ruling is manifestly arbitrary, unreasonable, or unfair. Id.

183 P.3d 723

The admissibility of expert testimony is governed by CRE 702, which states as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Thus, the court must first consider whether the substance of the proffered testimony will be helpful to the fact finder. Brooks v. People, 975 P.2d 1105, 1109 (Colo.1999). Helpfulness hinges on whether the proffered testimony fits the particular case, and fit demands more than simple relevance. There must be a logical relation between the proffered testimony and the factual issues involved. Wallin, 167 P.3d at 187.

Accordingly, when a defendant asserts a heat of passion defense, expert testimony may be admissible to describe characteristics of a heat of passion murder or attempted murder if the testimony will be helpful to the jury, as intended by CRE 702. See Lanari v. People, 827 P.2d 495, 504 (Colo.1992).

Here, however, the trial court determined the expert's testimony would not be helpful to the jury because the heat of passion mitigator of section 18-3-103(3)(b), C.R.S.2007, does not apply when a person intentionally seeks out the highly provoking act in question, as defendant had done here. We agree.

Section 18-3-103(3)(b) provides, in part:

[M]urder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person; but, if...